AGE WRONGLY GIVEN.

New Zealand Herald, Volume LXVIII, Issue 20978, 15 September 1931, Page 10

AGE WRONGLY GIVEN.

CONVICTION OF BOY. QUESTION OF JURISDICTION. COURT QUASHES SENTENCE. ENTITLED TO BE SET FREE. [BY TELEGRAPH. —OWN CORRESPONDENT.] WELLINGTON, Monday. Judgment was given by the Full Court to-day in the motion for an order to quash a plea of guilty, a committal for sentence and a sentence of a boy aged 15 years and 3 months, who was sentenced by Mr. Justice Smith at Auckland to be detained in a Borstal institute for a period of two years. The Full Court held that the proceedings against the boy had been taken without jurisdiction and must therefore be set aside. The facts were that the boy was charged at Whakatane on May 30 with the offence of breaking and entering an office at Whakatane. He pleaded guilty and ■was committed to the Supreme Court at Auckland for sentence. He erroneously stated that he was 18 yCars of age and be was dealt with on that basis. Neither the justices who committed the prisoner nor Mr. Justice Smith, who sentenced him, were aware of the true age of the prisoner. Birth Certificate Produced. His birth certificate later revealed that he was born on March 13, 1916, and his father died on the same day, and his mother on August 14, 1922. He had no known relatives from whom the police could get any particulars. His mother's sister, however, who had had the custody and control of the boy from the date of the death of his mother nntil August, 1929, saw a report in the newspapers of the Supreme Court proceedings and disclosed the fact that the boy was under the age of 17. Tho facts giving rise to the application to the Court, stated the judgment, were almost certainly unique. It was contended in argument that the boy, being under the age of 17 years, was a child within the meaning of the Child Welfare Act, 1925, and its amendments, and therefore should have been dealt with only by a Children's Court established under that Act, The justices who accepted the boy's plea of guilty and committed him to tho Supreme Court for sentence were not in any way to blame for what had happened. They were quite entitled in tho circumstances to rely on his voluntary statement that he was 18 years of age. Section 40 of the Child Welfare Act, 1925, did not help here, as the justices were admittedly not sitting under that Act at all. Boy's Statement of Age. It was not at any time suggested to them that the boy was cither a "juvenile offender" or a "child." On his own admission of age, he was throughout dealt with as an adult offender, notwithstanding the provisions contained in section 34 of the Child Welfare Act, 1925. "In other words," continued the judgment, "the justices here must, we think, be held to have found as a fact that the boy was over the age of 18 years and therefore subject to their general jurisdiction under section 131 of the Justices of the Peace Act. But the justices were sitting at Whakatane as a statutory Court of limited jurisdiction, as defined in the Justices of the Peace Act. Their whole jurisdiction depended on the express provisions of that Statute, which obviously have not been complied with in the present case. No consent can be given to the jurisdiction of a Court if a condition which goes to the jurisdiction has not been performed or fulfilled. Entitled to be Released. "It follows, in our opinion, that the justices, in committing for sentence, acted without jurisdiction. The same result must, we think, be reached from closer consideration of the provisions of the Child Welfare Act, 1925, itself. For these reasons, we arrived in the end at the conclusion that'the proceedings hitherto taken against the boy were so taken without jurisdiction and must be set aside. Accordingly an order must therefore be made quashing the plea of guilty, the committal for sentence and the sentence on the boy, who is now entitled to be released. No doubt proceedings may be taken de novo against him in the manner prescribed by the Child Welfare Act, 1925, and its amendments." The Court comprised the Chief Justice, Sir Michael Myers, Mr. Justice Herdman, Mr. Justice MacGregor, Mr. Justice Blair, Mr. Justice Kennedy and Mr. Justice Smith. At the hearing Mr. Noble appeared in support of the motion and Mr. Taylor appeared for the Crown.